ERICA BEUKES AND ANOTHER v DANIËL PETRUS BOTHA AND 3 OTHERS
CASE NO. (P) I 111/2004
CASE NO. (P) I 111/2004
Practice – pleadings – lay litigants – not to be held to same standard of skill and draughtsmanship as required of legal practitioners – pleadings of lay litigants to be construed generously and in light most favourable to their case
Practice – lay litigants – constitutional notions of fairness and equality – whatever latitude of form or technique may be allowed for lay litigants, courts must ultimately treat litigants equally when adjudicating substance of claims
Practice – administration of justice – bringing it into disrepute - access to courts – lay litigants not to be deprived or discouraged to bring bona fide justiciable claims to Court but tyranny of litigation by entertaining claims without legal substance to be avoided
Practice – exceptions – actio injuriarum – irrespective of ultimate onus relating to wrongfulness or animus injuriandi if publication of defamatory matter be proved, necessary to allege those elements in particulars of claim
IN THE HIGH COURT OF NAMIBIA
In the matter between:
DANIËL PETRUS BOTHA
HEDWIG ROSE JUNIUS
The excipients, who are all trustees of the Peace Trust (and to whom I shall refer to as “the defendants” hereunder), have taken a number of exceptions against the plaintiffs’ particulars of claim in an action instituted against them jointly and severally for payment of - (a) N$127,000.00 p.a. in respect of the loss and future loss of the first plaintiff’s salary for the period 1st August 2000 to 31st May 2014; (b) N$471,773.00 for the loss of first plaintiff’s pension and future pension and policy values; (c) N$500,000.00 for first plaintiff’s “defamation internationally”; (d) N$300,000.00 for each of the plaintiffs for invasion of their privacy and (e) N$300,000.00 for the second plaintiff in respect of “breach of copyright and gross abuse of intellectual property rights”.
Consistent with their attitude that their claims arise from a single cause of action (i.e. first plaintiff’s “fraudulent inducement to enter into an employment contract” with the Peace Trust) from which subordinate but inseparable other causes have arisen, the plaintiffs’ particulars of claim are a hotchpotch of narrative allegations, inferences, references, comments and claims. They are, however, lay litigants who have appeared in person and deficiencies in form should generally not be allowed to detract from their right to seek justice if they have been injured or their rights have been infringed. In Xinwa v Volkswagen of SA (Pty) Ltd, 2003 (4) SA 390 (CC) at 395C-E the Constitutional Court of South Africa held:
“Pleadings prepared by laypersons must be construed generously and in the light most favourable to the litigant. Lay litigants should not be held to the same standard of accuracy, skill and precision in the presentation of their case required of lawyers. In construing such pleadings, regard must be had to the purpose of the pleading as gathered not only from the content of the pleadings but also from the context in which the pleading is prepared. Form must give way to substance.”
It is a long-standing, well-honoured and eminently desirable attitude of courts not to deprive or discourage those unable to afford legal representation of access to the courts and the opportunity to have their rights and obligations determined in the course of a fair hearing. To facilitate ventilation of the issues which call for judicial determination, courts “will make allowance for the fact that such a person cannot be expected to display the same ability of draughtsmanship and precision of language as is expected by a legally trained and experienced pleader.”
I shall therefore construe the particulars of claim “generously and in the light most favourable” to the plaintiffs and, whatever the deficiencies in draughtsmanship may be, isolate and extract the substance of their claims in assessing the merits of the defendants’ exceptions thereto. The substance of the claims, generously construed, must however be sufficient to sustain the causes of action and cannot be so vague, conflicting or otherwise embarrassing that the defendants will not know which allegations to plead to or which case they will have to meet. Just as the inaccessibility of Courts for indigent persons or lay litigants may bring the administration of justice into disrepute, so may the tyranny of litigation if every personal grievance without legal substance cloaked as a claim is entertained against defendants - many of whom may eventually end up with judgments in their favour on paper but no real prospect to recover the costs they have been put up to without cause. Whatever latitude of form or technique may therefore be accorded to lay litigants to bring bona fide justiciable claims to court, the constitutional notions of fairness and equality demand that the courts must ultimately treat all litigants equally when they adjudicate the substance thereof. A lay plaintiff who is unable to make averments sufficient to sustain the elements of a justiciable claim should not be allowed to put a defendant to the emotional and financial (often unrecoverable) costs of a protracted hearing or trial. Steyn AJ (as he then was) continued the passage earlier quoted in Viljoen’s case with the following moderating reminder:
“On the other hand the Court will not ignore the interests of the excipient and will not allow mere inexperience in matters of pleading to excuse serious non-compliance with the requirements of the Rules of Court which are, after all, based on notions of justice and fair play to both sides in litigation.”
Pleadings, Mr Heathcote emphasised during argument on behalf of the 1st to 3rd defendants –
“ … are intended to define the issues between the parties; it enables the litigants to focus their attention during preparations for an at the trial itself on evidence necessary to address those issues and on the legal principles relevant thereto; it limits the ambit within which the court will allow the trial to be conducted and ultimately, contributes to a more expeditious and cost-effective adjudication of the case. The requirements of a fair trial demand that each party should know the case he or she will be required to meet.”
Drawing on the discussion in Beck’s on the same point, the plaintiffs submitted in limine that the defendants’ exceptions should be dismissed because they do not set out the grounds on which they are founded clearly and concisely and, therefore do not allow for “principled and logical disputations” in a “dialectic” discussion thereof. The plaintiffs dismissed the exceptions as “meaningless and obscure” and asked the Court to do the same with costs. The Court instead dismissed the plaintiffs’ in limine-objection to the exceptions at the hearing and held that the grounds upon which they are founded have been clearly and concisely stated – as will be apparent from the discussion which follows.
The exceptions of the first to third defendants (represented by Mr Heathcote) and that of the fourth defendant (represented by Mr Smuts) are not identically worded but are substantially the same. They relate only to the last three of the five claims I have referred to earlier, i.e. those based on defamation, invasion of privacy and breach of copyright. In what follows, I shall deal with the exceptions in that order.
The first exception is that particulars of the first plaintiff’s claim of N$500,000.00 for “defamation internationally” do not contain sufficient averments necessary to sustain the action, more particularly because the particulars of claim as amplified by further particulars do not - (i) state essential facts and particulars as to any defamatory statement allegedly made by the defendants or for which they could be liable; (ii) state essential facts and sufficient particulars as regards to the publication of any alleged defamatory statement relied on; (iii) allege the defamatory nature and wrongfulness of any alleged defamatory statement or statements and (iv) allege animus injuriandi on the part of the defendants. If one considers that defamation by an individual is the “unlawful, intentional, publication of defamatory matter (by words or conduct) referring to the plaintiff, which causes his reputation to be impaired,” it is at once clear that the exceptions relate to the first plaintiff’s failure to make factual allegations sustaining a number of the delict’s elements.
Picking out the pieces of meat from the hopscotch of allegations to give substance to the first plaintiff’s claim for defamation (and leaving the citation of the litigants aside for the moment), the most generous construction allows for the following abstract (with the relevant paragraphs from which the allegations have been extracted appearing in brackets):
During the course of her employment as Chief Executive Officer of the Peace Trust from September 1999 (13) to June 2000 (19) the defendants defamed the first plaintiff (21) by maintaining a campaign (21) in which they orally and in writing (1.2 of further particulars) created the false impression with the donors of the Trust (19), “Brot für die Welt” and “ICCO” (15), that -
first plaintiff had received their donations to the Trust (19) and was responsible to account for them (15 and 22) but expended the funds without a budget (19) and without being able to report on (21) or to account for the funds (19, 21 and 1.2 of further particulars);
first plaintiff had misappropriated the funds of the Trust (1.2 and 1.5 of further particulars);
the first plaintiff was incompetent (21) and